Brewer v. Brewer
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In the Orp hans Co urt for Baltim ore Cou nty Estate No. 90634 IN THE COURT OF APPEALS OF MARYLAND No. 67 September Term, 2004 ______________________________________ SCOTT C. BREWER v. WALTER L. BREWER, JR., PERSONAL REPRESENTATIVE OF THE ESTATE OF MAY C. BREWER ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinio n by Wiln er, J., Raker, J., dissents. ______________________________________ Filed: April 8, 2005 The ultimate issue before us is whether the Orphans Co urt for Baltim ore Cou nty erred in denying a p etition to reop en an Esta te that had been closed for more than 20 months. In the Orphans Court and in the Court of Special Appeals, a num ber of subsidiary questions were raised bearing on that issue, including whether the petition was timely. The only substantive question raised in the petition for certiorari was whether an agreement among all of the ben eficiaries to distribute certa in assets of the Estate in a manner different from that provided for in the testatrix s Will required submission to and approval by the Orphans Court. We sha ll answer th at question, a s framed , in the negativ e, but, in order to resolve the case properly, we shall also have to address some other issues, including that of timeliness, as well. 1 1 Maryland Rule 8-131(b) provides, in relevant part, that, unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court o f Appe als. We h ave tende d to apply that R ule strictly and will generally not consider an issue that was not raised in a petition or crosspetition , even if it is an im portan t issue th at was r aised an d decid ed in the lower c ourts. Nonetheless, deliberate insertion of the adverb ordinarily in the Rule precludes it from being a jurisdictional impediment, and, on rare occasions, we will consider an issue not clearly presented in a petition or cross-petition if the issue is truly important to the outc ome and our a ddre ssing it w ill no t prejudice an y party. That is precisely the case here. The issu e framed by petitioner, whe ther the Court of Special Appeals erred in holding that notice, disclosure, and judicial approval of a redistribution agreement is not required necessarily includes consideration of whether such an agreement is even permissible. As to timeliness of the petition to reopen, that was a major issue in both the Orphans Court and the Court of Special Appeals. It was raised by Walter, Jr. in his brief in this Court ( The Petition to Reopen the Estate was filed by the Appellant . . . over twenty months after the issuance of the Order closing the estate by the Orphans Court, and well after the applicable limitations periods in § 7-501 (contin ued...) BACKGROUND Walter L. Brewer, Sr. founded a plumbing business, which he incorporated under the name Walter L. Brewer, Inc. After his death in 19 86, the corp orate stock w as left to his widow, May, but the business, in its c orporate form, was carried on by three of his five children Wal ter, Jr., Bre nt, and B arry. May died in Ap ril, 1997; it is her E state and he r Will that are at issue here. Walter, Jr. was appointed as personal representative of May s Estate. On October 1, 1997, he filed an Inventory of the Esta te that, in addition to certain personal property, listed 13 items of real property, some of which consisted of multiple lots.2 The real p roperty represented the bulk of the value of the Estate. In her Will, May left the capital stock in the plumbing business to W alter, Jr., Brent, and B arry. She also specifically devised to those three sons, as tenants in common, four improved and two unimproved lots that were used in 1 (...continued) and § 10-103 of the Estates and Trusts Article . . . ), and it was discussed at oral argument. Most important, however, to ignore that issue and return the case to the Orphan s Court w ould serve little purpose. T hat court co uld still deny the p etition to reopen on the ground of untimeliness and would be entirely correct in doing so, and if, for whatever reason, it chose not to do so and strike its approval of the sixth administration account on the ground that the redistribution agreement was not formally presented to the court, that decision would have little effect at this point, as it would not affect the deeds that have b een on rec ord for m ore than fo ur years. This is th us one of those rare ca ses in which so und judicia l policy requires th at we add ress the timelin ess issue, put a n end to the litigation, and remove any cloud from the title to the properties. 2 An amended Inventory was filed by Walter, Jr., on January 12, 2000, deleting one of the properties listed on the original Inventory since it was determined that at the time of her death, May did not own that particular piece of property. Accordingly, only 12 items of real property were true assets of her Estate. -2- the plumbing business. The residue of the Estate was left to all five ch ildren Walter , Jr., Brent, Barry, Scott, and May Engle as tenants in common. Several of the lots not specifically devised to the three sons were used, or reserved for possible future use, by the plumbing b usiness. Some had been acquired by W alter, Sr. and May as tenants by the entireties prior to Walter, Sr. s death and devolved to May as the surviving tenant; others were purchased by May, or at least in her name, after her husb and s death. It also appeared that May had opened joint bank accounts with each of her children, with differing balances, of which the other children were unaware. In October, 1999, the five children, noting both the existence of those accounts and the fact that certain of the real property owned by their mother had been paid for and was being used by the corporation, entered into an A greem ent of D istributio n. The Agreement provided, essentially, for two things. First, the a mounts in the various joint savings accounts were to be pooled and, to the extent necessary, used to pay taxes and other expenses of the Estate, so that none of the Estate property would have to be sold, and any net balance, after paying those expenses, would be divided equally among the five children. Second, the real property used or reserved for use by the plumbing business w ould be dee ded to th e three s ons run ning th e busin ess. To that latter end, the ch ildren agree d to two deeds, uns igned cop ies of wh ich were a ttached to the Agreement. One conveyed the plumbing business lots, aggregate d into ten pa rcels, to the three sons, as tena nts in common, and the other co nveyed the b alance of th e lots to the five children, as tenants in common. -3- That distribution scheme, which p rovided fo r the conve yance to the thre e sons of lo ts that, under the Will, would have passed through the residuary clause to all five children, was obviously inco nsistent with the Will. Prior to the ex ecution of the A greem ent of D istributio n, Wal ter, Jr. filed three administration accounts that showed income received and expenses paid by the Estate, but, as no distributions had occu rred, none were reported. That was true as well w ith the fourth and fifth ad ministra tion acc ounts f iled afte r the Ag reeme nt was signed . The sixth (and final) administration account was filed by Walter, Jr., and approved by the court on January 2, 2001. That accou nt, the ap proval of wh ich eff ectively clo sed the Estate, did show the distribution of the Esta te, and it show ed the distribu tion of the re al property in accordance with the Agreement, rather than in accordance with the Will. On December 29, 2000, contemp oraneou sly with the filing of the final administration account, counsel for the Estate, Benjam in Turner, Esq., filed a fee petition with the court, in which h e listed all of the work he had don e. He note d in the petition that the sixth and final administration account had been prepared and that he had also prepared deeds for the distribution of real property in the Estate. On Feb ruar y 26, 2001, following approval of the final administration account, the two deeds implementing the Agreement were filed and recorded. Copies of all of the administration accounts and a copy of the fee petition we re sent to all five children. Scott claimed that he never received any of the administration accounts, although he admitted in testimony that he received copies of the orders approving those -4- accou nts. He never d enied re ceiving a copy of the fee petition . On October 24, 2002 more than twenty months after the sixth and final administration account was approved and the Estate was closed, and eight months after the two deeds implementing the Agreem ent were re corded Scott filed, in th e Orpha ns Court, a petition to reop en the E state. Although he did not deny having signed the Agreement, he claimed, for the first time, that he signed it without having read it and without an understanding as to [its] meaning and practic al effect. H is main complaints seemed to be that (1) the Ag reement was never disclosed to the cou rt and that the non-disclosure constituted a fraud on the court, (2) by not providing notice of the sixth administration account to Scott, Walter, Jr. breached his fiduciary duty to Scott and thereby allowed the court to approve the ac count w ithout an ex ception fro m him, an d (3) becau se of its inconsistency with the Will, the Agreement was void in any ev ent. He ask ed that the E state be reopened to allow for the filing of an exception to the sixth and final administration account and that the court direct that the Estate be distributed in conform ance with the Will. No action was filed in the Circuit Court to declare the deeds invalid. Walter, Jr., as personal representative, answered the petition and also filed a motion to dismiss it. Denying the substantive allegations, he asserted that, a s the distribution in conformance with the Agreement was fully disclosed to the court in the sixth administration account, there was no fraud on the cou rt, that Scott w as well aware of all relevant facts, that copies of all documents, including the sixth administration account, had been mailed to him, -5- and that h is petition was untimely. In testimony at a hearing on the petition, Sco tt said that, at the u rging of B enjamin Turner, the attorney for the Estate, he signed the Agreement without reading it and without knowing that it altered the d istribution sch eme estab lished in M ay s Will. He sa id that Mr. Turner had called him, arranged to meet h im at a Holiday Inn about halfway between Baltimore and where Scott lived in Virginia, that they met in the parking lot of the motel, that the Agreement was placed on the hood of Turner s car, that he was asked to sign it, and that he signed it w ithout readin g it. Scott stated th at he did not receive a copy of the Agreement until March, 2002, when he received a copy from the attorney then representing him,3 that he never received a copy of the two deeds, and that he would not have signed the Agreement had the contents been explained to [him]. He asserted that he did not become aware of the contents of the deeds until October, 2002, notwithstanding that unsigned copies of them, in the same f orm, wer e attached to and appr oved in the Agreem ent. Much of Scott s testimony was contradicted b y Mr. Turner, by Walter, Jr., by Brent 3 Scott testified that he did not receive the Agreement until his former attorney sent it to him in March 2002. In fact, the attorney wrote to Mr. Turner on March 13, 2001, requesting an explanation of the distribution and, on April 14, 2001, Turner responded and sent the attorney a copy of the Agreement. The correspondence between the attorneys is in the record. The attorney forwa rded the Agreem ent to Scott. The record thus shows that Scott had a copy of the Agreement in or about April, 2001, not March, 2002. When shown a copy of his attorney s March 13 letter to Turner, which revealed that the attorney was aware of how the property was distributed and that he had discussed the matter with Scott, Scott said that he was not familiar w ith the contents of that letter, even though the letter shows that a copy was sent to him. -6- and Barry, and by various documents. Turner testified tha t he sent cop ies of all six administration accounts to all five children, including Scott. He said that he mailed a copy of the sixth administration account to Scott on December 29, 2000 at the Timonium post office and presented a Post Office certification showing the mailing of an item to Scott on that date. Walter, Jr., who was with Turner at the Post Office, confirmed that testimony. The receipt shows the correct street address and town in Virginia where Scott lived. Although there is a possible discrepancy with respect to the ZIP code stated on the Post Office certification (22013 or 22015, the last number not being entire ly clear on the receipt), the item ne ver cam e back as und elivered . Turner also testified that Scott had, indeed, read the Agreement before he signed it and that he gave S cott an unsign ed copy of th e Agreem ent, to which copies of the two deeds w ere appended. He added that, when Scott got back into his car, he had the papers in his ha nd. Turner confirmed that, on April 14, 2001, he sent a copy of the Agreement to Scott s attorney in response to the attorney s March 13, 2001 letter. With respect to the court s awareness of the Agreement, Turner testified that a copy of the Agreement was shown to the court auditor, although no copy was ever p laced in the court file and it was never formally presented to the court itself. Barry Brewer testified that he and Scott had spoken o ften about Estate matters, including the properties that were the subject of the Agreement. He stated his belief that Scott fully understood the ramifications of the agreement of distribution. Barry confirmed -7- that those properties had been purchased with corporate funds, that, although May took title and was the borrower listed on some of the mo rtgages, the c orporation guarantee d and paid the loans, that the p roperties were being maintained by the corporation, and that the corporation paid the taxes on the properties. Walter, Jr. also testified regarding conversations held with Scott pertaining to the properties. He stated that Scott was told that a distribution agreement would b e drawn and wh at it would do. He said that Scott never objected, either before or after the Agreement was signed. After three days of hearings and after considering post-hearing memoranda submitted by the parties, the court, on September 4, 2003, entered a brief order summarily denying the petition to reopen the Estate. The order mad e no findin gs of fact a nd gave n o reasons. S cott then filed a motion f or reconsid eration in which he asked the court to make such findings and give reasons f or its deci sion . On Septemb er 30 , 200 3, the court sum marily denied that motion, whereupon Scott appealed directly to the Court of Special Appeals, complaining that the Orphan s Court erre d in failing (1) to find fraud on the court, (2) to find that Walter, Jr. fraudulently induced him to sign th e Agreemen t, (3) to find that Walter, Jr. breached his fiduciary duty in not distributing the property in accordance with the Will, and (4) to make finding s and g ive reas ons. The intermediate appellate court, in an unreported opinion, found no merit in those argumen ts and affirmed the judgment. It concluded that (1) agreements like the one at issue here are valid if the y comport w ith contract law and do n ot affect trusts created under the -8- Will, (2) the Agreement did not have to be presented to or approved by the Orph ans Cou rt, (3) the record d id not establish fraud in inducing Scott to sign the Agreement, (4) there was no breach of fiduciary duty by Walter, an d (5) the O rphans C ourt was not required to render its decision in any particular form. We granted certiorari to consider the single question of whether the Court of Special Appeals erred in finding that notice, disclosure or judicial approva l is not required before a distribution agreement could supersede a properly probated will. DISCUSSION Although Scott chose to frame b ut one issue in his petition for certiorari, to dispose of the case pro perly we nee d to consid er three issue s: whether an agreement among beneficiaries, all of whom are comp etent adults, to d istribute non- trust Estate property in a manner different f rom that pro vided for in the Will is valid; whether, if so, such an agreement must be presented to and approved by the Orphans Court; and whether, in this case, the Orphans Court erred in denying the petition to reopen the Estate. We shall answer the first question in the affirmative, the second partly in the affirmative, and the third in the negative, and, as a result, we shall affirm the judgment of the Court of Special Appeals.4 4 For guidance to the O rphans Courts, we note that Maryland Ru le 2-522(a), requiring a C ircuit Court ju dge, in a co ntested cou rt trial, to prepare a nd file or dic tate into the reco rd a brief state ment of th e reasons f or his/her de cision, does n ot apply directly to th e Orph ans C ourts. See Marylan d Rule s 1-101 (b) and 6-461 (d). (contin ued...) -9- Validity of Agreement and Role of Orphans Court As a preface, it is important to note that the Agreement at issue here was a private one among the five be neficiaries o f the Estate that related so lely to the distribution of non-trust Estate assets in wh ich only they had an interest. It neither created, eliminated, nor affected the value of any asset or liability of the Estate. Although Walter, Jr., one of the signatories, happened to be the pe rsonal repre sentative of May s Estate and would ultimately be responsible for deeding the properties in conformance with the Agreement, he did not sign the Agreement in that official capacity. This is not a case, then, of the personal represe ntative c ompro mising or settling a claim made agains t the Esta te. The first two questions were considered in Surratt v. Knight, 162 Md. 14, 158 A. 1 (1932). The testator in that case, after making c ertain specif ic bequests , left all of his residuary estate to three ch aritable c orpora tions. His daughter filed a caveat to the Will, and the case was transferred to what is now the Circuit Court for trial. While the case was pending in that court, the residuary legatees and the daugh ter reach ed a settl emen t. In return for the daugh ter refusing to offer evid ence at trial, the legatees eac h assigned to her one-h alf of their respective legacie s. That agreement was implemented and, perhaps in consequence of the daughter offering no evidence, the jury sustained the validity of the Will. The personal 4 (...continued) Nonetheless, as a matter of good judicial practice and fairness, those courts should, at least upon request, follow that Rule, make appropriate findings, and give reasons for important decisions. Extensive opinions are not required just a brief statement of findings and reasons. -10- representative then filed two administration accounts and distributed all of th e beques ts except those to the three residuary legatees. The assignments were placed on record and presented to the personal representative who, believing th at the legatee s had no p ower to m ake such assignme nts, refused to recognize them. He filed su it in equity against the daughter and the legatees and asked the court to assume jurisdiction over the Estate, construe the residuary clause, determine the validity of the assignments, and direct the personal representative in the administration of the Estate. The defend ants objected to intervention by the co urt but consented to a distribution in accordan ce with the Will, asse rting, how ever, that the a ssignmen ts would nonetheless be implemented. The court dismissed the complaint with costs, and the personal representative appealed. In dismissing th e appeal, this C ourt made two basic rulings. First, citing several earlier cases, it concluded that, because the personal re presentative is charged w ith the duty to defend th e validity of the Will and to com plete the adm inistration of th e estate in accordance with the term s of the w ill, under the law, the personal representative should not become a party to any shift or device w hereby the w ill of his testator is collusively avoided, or the intention of the testator is defeated o r changed to effect a d ifferent disp osition of h is estate. Id. at 16, 158 A. at 2. The personal representative, the Court noted, had performed his duty by successfully defending the Will. With respect to the settlement, the Court observed: -11- These three legatees can do what they like with their own, and the execu tor, qua executor, cannot in any manner control or prevent this freedom of disposition, which is of the substance of their property rights. So, either before, during, or after the caveat to the will, it was competent for all the testamentary beneficiaries and next of kin of the testator, as they were sui juris, to renounce the prov isions of the will and agree , for a consideration, that the residu ary estate should be divided among them in specifi ed prop ortions. Id. at 17, 158 A. at 2. As a consequence , the Court added tha t, [i]n his cap acity as ex ecut or or individu ally, the complainant could not raise the question whether or not the compromise of the litigation by the [residuary legatees] is ultra vires. Id. For that reason, there was no error in the dismissal of the equity complaint. Once the complaint was dismissed, the personal representative had no personal interest in further litigation, and it was for that reaso n that his appeal was also dismissed. In Hohman v. Hohman, 164 Md. 594, 615, 165 A. 812, 820 (1933) and Caugh y v. Safe Deposit & Trust Co., 196 Md. 252, 261, 76 A.2d 323, 327 (1950), citing Surratt, we confirmed the ability of comp etent benef iciaries to reach an agreem ent to distribute an Estate in a manner different f rom that set f orth in the Will. Th at principle is w idely recognize d in other States as well; indeed, subject to the normal rules of contract law, those kinds of agreements, commonly referred to as family settlement agreements, are favored in the law.5 5 See Ha rris v. Harris , 370 S.W.2d 12 1 (Ark. 1963); Haley v. Regions Bank, 586 S.E.2d 63 3 (Ga. 20 03); Foltz v. Wert, 2 N.E. 950 (Ind. 188 5); Matte r of Gu stafson , 551 (contin ued...) -12- Although some of the settlement agreements at issue in the various cases, as in Surratt, were designed to resolve litigation regarding the validity of the Will or a provision or bequest in a Will, the existen ce of a dispute is not ord inarily a pre requisite . See Pfaff v. Clemen ts, 213 S.W.2d 356 (A rk. 1948). Some courts require settlement agre ements to be pr esented fo r approva l to their States equ ivalent of o ur Orpha ns Courts , while others do not. Comp are Ma tter of Estate of Wise, 890 P.2d 744 (Kan. App. 1995) (agreement must be submitted to and approved by court to obtain de cree of fin al settlement) with Leone Hall Price Foundation v. Baker, 577 S.E.2d 779 (Ga. 2003) (approval not required) and Matter of Estate of Grimm, supra, 784 P.2d 1238 (approva l not required where parties are leg ally competent to contract). To some extent, th e matte r seems to be go verned by statute. Maryland has no statute specifically requiring family settlement agreements to be submitted to or approved by the Orphans Court. Maryland Code, § 9-105(a) of the Estates & Trusts Article requires the personal representative to execute and deliver deeds 5 (...continued) N.W.2d 312 (Iow a 1996); Matter of Estate of Hessenflow, 909 P.2d 662 (Kan. App.2d 1995); In re Estate of McRight, 766 So.2d 48 (M iss. App. 2000); Richmond v. Wohlberg, 431 N.E .2d 902 (M ass. 1982); Estate of Webster, 920 S.W.2d 60 0 (Mo. Ap p. 1996); Cahill v. Armatys, 177 N.W .2d 277 (N eb. 1970); Matter of Estate of Cruse, 710 P.2d 733 (N.M. 1 985); In re Smith s Estate, 355 N.Y .S.2d 994 (A.D. 19 74); Matter of Estate of Outen, 336 S.E.2 d 436 (N .C. App. 1 985); Drummond v. Johnson, 643 P.2d 634 (Okla. 1982); In re Mc Crea s E state, 380 A.2d 773 (Pa. 1 977); Matter of Estate of Krause, 444 N.W.2d 4 (S.D. 19 89); Mason v. Pearson, 668 S.W .2d 656 (T enn. Ap p. 1983); Shepherd v. Ledford, 926 S.W .2d 405 (T ex. App . 1996); Matter of Estate of Grimm, 784 P.2d 1238 (Utah C t. App. 198 9); Augustine v. Gibson, 429 P.2d 314 (W yo. 1967). -13- implementing the distributio n of assets in kind, but th at is essentially a min isterial duty necessary to transf er title. Nonetheless, there are two good reasons for any such agreement that calls for distribution in a manner inconsistent with the Will to be at least a matter of record in the Orphan s Court. The first is that requiring any redistribution agreement to be placed in the record of the Orphans Co urt proceeding and brought to the attention of both the Register of Wills and the court is critical in preventing fraud and assuring regularity and consistency in the Orphans Court proceeding. The personal representative has a fiduciary duty to settle and distribute the estate of th e decede nt in accordance with the terms of the will and the estates of deceden ts law. Esta tes and Tru sts Article, § 7-101(a). The function of the administration accounts filed by the pers onal repres entative is to d ocumen t that he/she is p roperly administering the Estate. Those accounts must be audited by the Register of Wills and approv ed by the Orph ans C ourt be fore dis tribution s can law fully be m ade. If the account shows a distribution inconsistent with the Will and there is no ad equate documentation attached to it to explain the inconsisten cy, the Register c annot complete a proper audit and th e court can not prope rly approve the account. Anyone examining the record, bereft of the r edistribution a greemen t, would ha ve to conc lude that the a ccount is incorrect and shou ld not be ap proved, as there wo uld be noth ing to expla in why prope rty left by the W ill to X is b eing dis tributed to Y. Requiring a redistribution agreeme nt to be of re cord in the O rphans C ourt is -14- particularly important when the agreement concerns real property. The personal representative s deed serves as the link in the chain of title between the decedent and the grantee, and it should therefore contain a recital identifying the decedent, his/her date of death, and the Orph ans C ourt pro ceedin g. See A LLAN J. G IBBER, G IBBER ON E STATE A DMINISTRATION (4 th ed. 2001), § 9.92 and Forms, § 9.103. That allows anyone searching the title to make the connection and trace the property from the grantee through the Orphans Court proceeding to the decedent. If the agreement is not in the Orphans Court record, or separately recorded a mong th e land reco rds, howe ver, there w ill be a discon nect. The W ill will show the property devised to X, but the deed will show it conveyed to Y, with no documentation to justify th e diffe rence. Even a recital in the person al representative s deed referencing an agreement (which was missing from the deed in this case) will not suffice for this purpose; a careful title sea rcher wo uld wan t to examine the agreem ent itself, at least to be satisfied that su ch an agre ement actu ally exists and that the conveyance is in conformance with it. We conclu de, therefore, that (1) redistribution agreements are permissible and, so long as they comply w ith the requirements of basic contract law, neither the personal representative nor the cou rt has any autho rity to disapprove or veto the m, but (2) if they are to be implemented as part of the Orphans Court proceeding, through a deed from the personal representative pursuant to an approved administration account, they must be attached to that account or otherw ise made part of the Orphans Court record. The account -15- must not simply show the distribution in accordance with the agreement but must identify the agreeme nt, incorporate it by reference, and clearly reflect that the distribution is being made pursuant to the agreem ent rather tha n pursuan t to the Will. This Case The sixth admin istration acco unt filed in this case clearly did not comply with these requirements, and, in the absence of any finding by the Orphans Court that it was aware of the Agreement, we are at a loss to understand how that account, facially inconsistent with the Will, could pro perly have been audited and approved. Nonetheless, on this record, we find no substantive error in the orders of the court denying the petition to reopen and the motion for reconsideration. The gravamen of Scott s complaint was that he was unaware of the contents of both the Agreement and the sixth administration account, that court approval of the Agreement was required, and that the court should reopen the Estate so that he could file an exception to that account and the court could direct distribution in conformance with the W ill. It would certainly have been helpful, in light of the conflicting evidence, if the court had made findings regard ing wh at Scott k new a nd wh en he k new it. As noted, there was substantial evidence that he was fully aware of the contents of the Agreement and the attached deeds when he signed the Agreement and that he had received a copy of both the sixth administration account and the fee petition that mentioned that account. He admitted -16- receiving a copy of the order approving the sixth admin istration acco unt. Mor e importan t, there was no substantial evidence that Walter, Jr., or anyone else d eliberately kept S cott in the dark. If he received a copy of the o rder appro ving the sixth administration account but had not, in fact, received a copy of the account, he had an obligation to inquire. Certainl y, upon recordation of the two deeds on February 26, 2001, he was on constructive notice of how the real property was distributed. Maryland Code, Estates and Trusts Article, § 7-501(b) and Maryland Rule 6-417(f) require that exceptions to an account must be filed with the Register within 20 days after approval of the account by the court. That obviously was not done, and, as a result, the Estate was closed and the deeds implementing the Agreement were executed and recorded. Rule 6-417(g) makes clear that, if timely exceptions are not filed, the order of the co urt approving the account becomes final. In the absence of any finding by the court of fraud, mistake, or irregularity, there was no basis for the court to reopen the Estate to permit an exception to be filed to the final administration account on a petition filed 20 months after the Estate had been closed.6 It is principally for that reason that we shall aff irm the judgment 6 Maryland Rule 2-535(b), allowing a Circuit Court to exercise revisory power over an enrolled judgment upon a showing of fraud, mistake, or irregularity does not directly apply to the O rphans C ourts, althoug h, under R ule 6-461 (d) those co urts could possibly make that Rule applicable. Whether a similar power stated in Maryland Code, Courts and Judicial Proceedings Article, § 6-408 was intended to apply to the Orphans Courts is not clear. We need not address those questions in this case, as no finding of fraud, mistake, or irregularity was mad e by the court. Apart from tha t, even if the court were to grant the petition, strike its approval of the final administration account, and (contin ued...) -17- of the Court of Special Appeals. JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. 6 (...continued) direct distribution in conformance with the Will, its order could not affect the deeds that had been recorded. S cott would then have to file a com plaint in the C ircuit Court to invalidate those deeds, which would raise a most serious issue of laches. -18- In the Orp hans Co urt for Baltim ore Cou nty Estate No. 90634 IN THE COURT OF APPEALS OF MARYLAND No. 67 September Term, 2004 SCOTT C. BREWER v. WALTER L. BREWER, JR., PERSONAL REPRESENTATIVE OF THE ESTATE OF MAY C. BREWER Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Raker, J . Filed: April 8, 2005 Raker, J., dissenting: The majority appar ently believes tha t if an issue is truly importan t to the outcome of a case, this Court should deviate from its longstanding practice of not considering an issue unless it is raised in a certiorari petition.1 See Maj. Op. at 1 n.1. I disagree, and would abide by the principle w e have fo llowed co nsistently since becoming a certiorari court more than three decades ago. Our jurisprudence on this issue is very clea r. See, e.g., Finucan v. Board of Physicians, 380 M d. 577, 589 , 846 A.2d 377, 384 (2004) (ho lding that pe titioner waiv ed constitutional and procedural issues by not raising them in the Petition fo r Writ of Certiorari and Court w ill not consid er the issues); Calvert Joint v. Snider, 373 Md. 18, 31 n.8, 816 A.2d 854, 861 n.8 (2 003); Middle States v. Thomas, 340 Md. 699 , 702, 668 A.2d 5 , 6-7 (1995); Am. Motorists Ins. Co. v. Artra Group, Inc., 338 Md. 560, 568-569, 659 A.2d 1295, 1299 (1995) (noting that choice-of-law issue was not within the certiorari question and was therefore not properly before Cou rt); McElroy v. State, 329 Md. 136, 146, 617 A.2d 1068, 1073 (1993) (noting that, becaus e petitioner s first argum ent was n ot in his Petition for Writ 1 Harmles s error is the on e exception to this principle , and that exc eption is contained expressly in Md. Rule 8-131(b). Before Rule 8-131(b) was amended to include this exception, this Court would not consider harmless error arguments unless raised in a certiora ri petition , cross-p etition, o r order o f this C ourt. See Clark v. State, 306 Md. 483, 492, 510 A.2d 24 3, 247 (19 86); Colem an v. State, 281 Md. 538, 547, 380 A.2d 49, 55 (1977). of Certiorari, the iss ue was n ot properly bef ore Cou rt); State v. Lancaster, 332 Md. 385, 402 n.12, 631 A.2d 453, 462 n.12 (1993); Batson v. S hiflett, 325 Md. 684, 700-01, 602 A.2d 1191, 1199-12 00 (1992 ); Ungar v. Handelsman, 325 Md. 135, 147, 599 A.2d 1159, 1164-65 (1992); Gonza les v. State, 322 Md. 6 2, 69, 585 A .2d 222, 22 6 (1991); Stinnett v. Cort Furniture, 315 Md. 448, 452 n.2, 554 A.2d 12 26, 1227 n.2 (1989 ); Wagner v. Doehring, 315 Md. 97, 103 n.4, 553 A.2d 6 84, 687 n.4 (1989); Neal v. Fisher, 312 Md. 685, 690-91 n.5, 541 A.2d 1314, 1317 n.5 (1 988); Maus v. State, 311 Md. 85, 10 6, 532 A.2d 10 66, 1077 (1987 ); Allgood v. State, 309 M d. 58, 82, 52 2 A.2d 9 17, 929 (1 987); Wright v. Sta te, 307 Md. 552, 587, 515 A.2d 1157, 1175 (1986); Md.-Nat l Cap. P. & P. Comm n v. Craw ford, 307 Md. 1, 36-37, 511 A.2d 10 79, 1097 -98 (1986 ); Clark v. Sta te, 306 Md. 483, 491-92, 510 A.2 d 243, 247 (1986); Fred W . Allnutt, I nc. v. C omm r Lab. & Ind., 289 Md. 35, 39 n.2, 421 A.2d 1360, 1362 n.2 (1980); McM orris v. State, 277 Md. 62, 70-71 n.4, 355 A.2d 438, 443 n.4 (1976); Walston v. Sun Cab Co., 267 M d. 559, 569 , 298 A.2d 391, 397 (1973); Maryland State Police v. Zeigler, 330 Md. 540, 562-63, 6 25 A.2d 914, 925 (1993); Clark v. Elza, 286 Md. 208, 219 n.4, 406 A.2d 922, 92 8 n.4 (1979); Huger v . State, 285 Md. 347, 354, 402 A.2d 880, 885 (1979); Mazor v. State, Dep t of Correction, 279 Md. 355, 370-71 n.8, 369 A.2d 82, 92 n .8 (197 7). While Rule 8-131(b) co ntains the language that this C ourt ordinarily will consider only an issue raised in a certiorari petition, a cross-petition, or an order of this Court, indicating exception s to the gene ral rule, it should no t be interpreted as enabling this Court -2- to consider an issue not raised m erely b ecause it is important to the decision. As Judge Eldridge explained in his dissent in State v. Broberg, 342 Md. 544, 573, 677 A.2d 602, 616 (1996): The word ordinarily does indicate that there are exceptions. Nevertheless, neither the u se of the w ord ordina rily in Rule 8-131(b) nor the principle embodied in the rule, has been treated as granting a general discretion to reach an issue whenever the Court so desires in the interests of fairness. If it did, the amendment to Rule 8-131(b), adopting an express exception for the harmless error issue, would have bee n unnece ssary. Instead, we have held that the exceptio ns to the prin ciple embodied in Rule 8-131(b) are limited to extrao rdinary circumstances. (Footno tes and citations omitted). I am not persuade d that this case fits into our accepted c ategory of extraordinary circum stances . I therefore would not consider the timeliness issue upon w hich the m ajority appare ntly bases its decisio n. The only issue properly before us is the que stion of w hether agre ements such as the one at issue must be presented to and approved by the Orphans Court. I agree with the majority that if agreements of this type are to be implemented as part of the Orphan s Court proceeding, through a deed from the personal representative pursuant to an approved administration account, then they must be attached to that account or otherwise made part of the Orphans Court r ecord. See Maj. Op. at 15. I also agree that the administration account in this case did not comply with th ese req uireme nts. See Maj. Op. at 16. B ecause the Cou rt of Special Appeals held to the contrary, and because it was this holding, and this holding alone, that w as raised in the Petition for W rit of Certiora ri, I would re verse the jud gment. -3- Acco rdingly, I re spectfu lly dissent. -4-
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